SUPREME COURT OF THE UNITED STATES

---

No. 92-5129

---

JOHN SULLIVAN, PETITIONER v. LOUISIANA

on writ of certiorari to the supreme court of louisiana

[June 1, 1993]

Chief Justice Rehnquist , concurring.

In Arizona v. Fulminante, 499 U. S. ---- (1991), we divided the class of constitutional violations that may occur during the course of a criminal proceeding, be it at trial or sentencing, into two categories: one consisting of "trial error[s]," which "may . . . be quantitatively assessed in the context of other evidence presented," id., at ---- (slip op., at 6) (opinion of Rehnquist, C.J., for the Court), and are amenable to harmless error analysis; the other consisting of "structural defects," which "affec[t] the framework within which the trial proceeds," id., at ---- (slip op., at 8), and require automatic reversal. There is a "strong presumption" that any error will fall into the first of these categories. Rose v. Clark, 478 U.S. 570, 579 (1986). Thus, it is the rare case in which a constitutional violation will not be subject to harmless error analysis. See Fulminante, supra, at ---- (slip op., at 8) (listing examples of structural errors).

The Court holds today that the reasonable doubt instruction given at Sullivan's trial, which (it is conceded) violates due process under our decision in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), amounts to structural error, and thus cannot be harmless regardless of how overwhelming the evidence of Sullivan's guilt. See ante, at 6-7. It grounds this conclusion in its determination that harmless error analysis cannot be conducted withrespect to error of this sort consistent with the Sixth Amendment right to a jury trial. We of course have long since rejected the argument that, as a general matter, the Sixth Amendment prohibits the application of harmless error analysis in determining whether constitutional error had a prejudicial impact on the outcome of a case. See, e. g., Rose, supra, at 582, n. 11. The Court concludes that the situation at hand is fundamentally different, though, because, in the case of a constitutionally deficient reasonable doubt instruction, "the entire premise of Chapman [harmless error] review is simply absent." Ante, at 5.

Where the jury views the evidence from the lens of a defective reasonable doubt instruction, the Court reasons, there can be no factual findings made by the jury beyond a reasonable doubt in which an appellate court can ground its harmless error analysis. See ante, at 6. The Court thus distinguishes our cases in which we have found jury instructions that create an unconstitutional presumption regarding an element of the offense subject to harmless error review. In Rose v. Clark, supra, for example, we held that harmless error analysis may be applied in reviewing instructions that violate the principles of Sandstrom v. Montana, 442 U.S. 510 (1979), and Francis v. Franklin, 471 U.S. 307 (1985). The "malice instruction" in Rose shifted the burden of proof on the issue of intent, in violation of due process under our decision in Sandstrom. Because the jury was instructed to presume malice from certain predicate facts, and it was required to find those facts beyond a reasonable doubt, we held that the Sandstrom error was amenable to harmless error analysis. 478 U. S., at 580. See also Connecticut v. Johnson, 460 U.S. 73, 96-97 (1983) (Powell, J., dissenting).

There are many similarities between the instructional error in Rose and the one in this case. In the first place, neither error restricted the defendants' "opportunity to put on evidence and make argument to support [their] claim[s]of innocence." 478 U. S., at 579. Moreover, "[u]nlike [structural] errors such as judicial bias or denial of counsel, the error[s] . . . did not affect the composition of the record." Id., at 579, n. 7. Finally, neither error removed an element of the offense from the jury's consideration, id., at 580, n. 8, or prevented the jury from considering certain evidence. (In this regard, a trial in which a deficient reasonable doubt instruction is given seems to me to be quite different from one in which no reasonable doubt instruction is given at all.) Thus, in many respects, the Cage violation committed at Sullivan's trial bears the hallmark of an error that is amenable to harmless error analysis.

One may question whether, even in the case of Sandstrom error, the ability to conduct harmless error review is dependent on the existence of "beyond a reasonable doubt" jury findings. In the typical case, of course, a jury does not make explicit factual findings; rather, it simply renders a general verdict on the question of guilt or innocence. Thus, although it may be possible to conclude from the jury's verdict that it has found a predicate fact (or facts), the reviewing court is usually left only with the record developed at trial to determine whether it is possible to say beyond a reasonable doubt that the error did not contribute to the jury's verdict. Moreover, any time an appellate court conducts harmless error review it necessarily engages in some speculation as to the jury's decisionmaking process; for in the end no judge can know for certain what factors led to the jury's verdict. Cf. Pope v. Illinois, 481 U.S. 497, 503, n. 6 (1987). Yet harmless error review has become an integral component of our criminal justice system. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); Chapman v. California, 386 U.S. 18, 22 (1967).

Despite these lingering doubts, I accept the Court's conclusion that a constitutionally deficient reasonable doubt instruction is a breed apart from the many otherinstructional errors that we have held are amenable to harmless error analysis. See, e. g., Carella v. California, 491 U.S. 263 (1989) (per curiam) (instruction containing erroneous conclusive presumption); Pope v. Illinois, supra (instruction misstating an element of the offense); Rose v. Clark, supra (instruction containing erroneous burden shifting presumption). A constitutionally deficient reasonable doubt instruction will always result in the absence of "beyond a reasonable doubt" jury findings. That being the case, I agree that harmless error analysis cannot be applied in the case of a defective reasonable doubt instruction consistent with the Sixth Amendment's jury trial guarantee. I join the Court's opinion.